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2016 DIGILAW 230 (ORI)

Hemayatun Nisha v. Sanjukta Swain

2016-03-22

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. 1. This is an appeal at the instance of claimants-appellants against the rejection of their claim application by the 1st Additional District Judge-cum-1st M.A.C.T. Cuttack in M.A.C. No. 31 of 2011. 2. Short facts involved in the case is that on 22.9.2010 at about 6.00 P.M. when the deceased was going towards Sum Hospital at Bhubaneswar by riding his motorcycle bearing registration No.OR-02-Z-4609 on the extreme left side of the road, on the way near Sum Hospital, Bhubaneswar the offending vehicle, i.e., TATA ACE bearing registration No.OR-05-AC-5936 came in a high speed in a rash and negligent manner dashed against him from his backside, as a result of which, the deceased fell down from his motorcycle and sustained grievous head injury and other multiple injuries all over his body. Soon after the incident the deceased was shifted to Sum Hospital, Bhubaneswar for treatment from where the deceased was again shifted to Ayush Hospital, Bhubaneswar for better treatment but during the course of his treatment in the Ayush Hospital, the deceased succumbed to injuries there on 23.9.2010. 3. On the plea that the death of the deceased occurred due to rash and negligent driving of the driver of the offending vehicle, the legal representatives of the deceased made a claim with further submission that the deceased was aged about 45 years at the time of death, was working as Deputy Station Superintendent (Railway) Khurda Road, Khurda and was getting salary of Rs.35,000/- per month. 4. Pursuant to notice on the Insurance Company, it appeared and filed written statement. While admitting the statements in paragraph-3 regarding the accident taking place at a particular spot the Insurance Company disputed its liability on account of no valid insurance policy in favour of the offending vehicle. Taking into consideration the materials available on record, the 1st Additional District Judge-cum-1st M.A.C.T., Cuttack dismissed M.A.C. No. 31 of 2011 thereby rejecting the claim made by the claimants. 5. Advancing argument, Mr. Choudhury, learned counsel appearing for the claimants-appellants submitted that the impugned judgment is not only contrary to the materials available on record but also based on conjectures, surmises as well as imputations is only relevant for the purpose of decision in such a matter. 5. Advancing argument, Mr. Choudhury, learned counsel appearing for the claimants-appellants submitted that the impugned judgment is not only contrary to the materials available on record but also based on conjectures, surmises as well as imputations is only relevant for the purpose of decision in such a matter. In the premises, Sri Choudhury, learned counsel appearing for the claimants-appellants requested for interference in the impugned judgment and for passing appropriate order in favour of the claimants-appellants. 6. On its opposition, learned counsel appearing for opposite party No.1 as well as learned counsel appearing for opposite party No.2-Insurance Company advancing a common argument, submitted that in view of the submission made in the written statement and the pleading advanced in court below particularly keeping in view the observations made by the learned Tribunal, there is no error committed by the learned Tribunal leaving any scope for interference in the matter. 7. Perused the impugned judgment. Considering the submission of Sri Choudhury and the stand taken in the written note of submission and after perusal of the findings of 1st Additional District Judge-cum-1st M.A.C.T., Cuttack, particularly in so far as Issue No.1 is concerned, this Court is of clear view that the 1st Additional District Judge-cum-1st M.A.C.T., Cuttack has not only based its finding on surmises and conjectures but also clearly ignored the materials available on record by way of pleading as well as evidence led by the claimants-appellants and the judgment also appears to be full of errors on the face of record. 8. Since there is no effective consideration of the contention of the parties, this Court in setting aside the impugned judgment, instead of entering into the merit of the case, is inclined to remand the matter to the 1st Additional District Judge-cum-1st M.A.C.T., Cuttack for fresh hearing and disposal of the same on merit after given opportunity of hearing to all the respective parties. The matter be reheard and disposed of within a period of two months from the date of production of certified copy of this judgment. With the aforesaid observation, the MACA stands allowed but however there is no order as to cost.